Conf  Pam  12mo  #376 
DT1Db25fl51 


S  P  E EC  H 


OF 


HON.    GEORGE  A.    GORDON, 

OF    CHATHAM, 

ON  THE  CONSTITUTIONALITY 


OP   TH3 


CONSCRIPTION    LAWS, 

PASSED  BY  THE  COHGEESS  CF  THE  COHFEBERATE  STATES, 

DELIVERED  IN  THE  SENATE  OF  GFORGIA,  ON  TUESDAY, 
Oth  OF  DECEMBER,  1S62. 


KEPOBTBD  BXPREftSLT  FOB,  THB    INTELLIGENCES,  BY  A.  BL  MAB8HAUk 


ATLANTA,  G A.: 

PRINTED  AT  THE   OFFICE  OF    THE   DAILY   INTFXLIGKSCBB. 
1862. 


8  P  E  E  c  i-r 


OK 


HON.    GEORGE    A.  GORDON,. 

OF    CHATHAM, 
ON  THE  CONSTITUTIONALITY  OF  THE  CONSCRIPTION  L.W8, 

PASSED  HY  THE  CONGRESS  OF  THE  CONFEDERATE  STATES, 
Delivered  in  the  Senate  of  Georgia,  on  Tuesday,   9th  December.  1862. 


The  Committee  ou  Confederate  Relatloas 
made  two  reports,  one  the  Majority,  and  the 
other  the  Minority. 

The  following  resolutions  were  offered  by 
Mr.  Gordon  as  a  substitute  for  both  : 

"The  General  Assembly  of  Georgia,  im- 
pressed with  the  conviction  that  their  pri- 
mary duty  at  this  juncture  of  the  nation's 
history  is  to  bring  this  unhallowed  war  to  a 
successtul  close,  at  whatever  sacrilice  of 
blood  or  treasure,  do  hereby 
Resolud,  That  they  will  take  no  action  that 
Bhall  impede  the  operation  oftheActsol  Con- 
gress, commonly  called  the  Conscript  Acts, 
but,  under  a  deep  sense  of  their  obliga- 
tions to  the  State,  this  General  Assembly,  in 
Ihe  name  and  behalf  of  the  people  of  Geor- 
gia, do  solemnly  protest  against  saidtActs  as 
a  violation  of  the  Constitution  of  the  Con- 
federate States,  and  an  mtringeraent  upon 
the  sovereignty  of  the  several  Slates/' 

Mr.  President,  were  I  disposed  to  consrh 
my  individual  interests,  or  my  person  A  feel- 
ings, I  should  not  disturb  the  slumber  of 
these  resolutions ;  but  I  should  let  them  rest, 
so  far  as  any  interference  on  my  part  is  con- 
cerned,in  the  "tomb  of  the  Capsleta"  beneafh 
the  Secetary's  desk.  But,sir,  I  believe  this  sub 
ject  to  be  one  of  too  great  importance,  of  too 
grave  moment,  to  be  passed  by  In  this  man- 
ner. Sir,  at  such  a  time  a9  this,  when  the 
temple  of  liberty  itself  is  rocking  at  its  very 
base,  when  clouds  and  darkness  are  obscur- 
ing its  fair  proportions,  and  when  storms 
and  tempusts  are  howling  around  its  battle- 
ments, it,  seems  to  me  that  the  sentinels  up- 


on  the  watch-tower,  placed  as  we  .%re  m 
authority  to  guard  the  sacred  edifice,  should 
give  an  answer  to  the  anxious  cry  of  the 
people  we  represent,  "  Watchman,  what  of 
the  night  ?"    I  have  made  it  a  rule  of  my 
life  to  look  conscientiously  and  prayerfully 
for  the  path  of  duty,  and  when  I  have  found 
it,  to  endeavor  to  follow  it  irrespective  oi'all 
personal  considerations.      But,  sir,  while  I 
am  impressed  with  the  importance  of  the 
theme  to  be  discussed,  I  desire  to  argue  it 
calmly,  coolly,  dispassionately.    In  this  dis 
cussion,  nothing  of  personality,  nothing  of 
party,  nothing  of  prejudice,  nothing  of  pas- 
sion, shoulu  enter  into  debase  it.  We  should 
aim  at  unadulterated,  serene  tluth,    1  do 
firmly  believe  that  the  Senate  ot  to-day  i» 
placed  in  a  position  where,  should  its  ac- 
tion be  correct,  it  will  occupy  in  the  eyes  of 
posterity  the  samr-  prominence  that  the  Leg- 
islature of  Virginia  carved  for  itself  by  the 
memorable  resolutions  of  1798;   and  thai 
our  action  will  serve  as  a  beacon  to  guide 
our  people  in  generations  to  come.     I  be- 
lieve, if  we  write  our  record  aright  this  day, 
that  the  action  of  the  Legislature  of  !8H2 
will  be,  to  our  children  and  to  our  childi  m\- 
children,  what  Virginia's  in  1758  has  boeji  to 
U9  in  our  day  and  generation. 

And  in  order  that  I  may  show  my  sincerity, 
my  deep  sincerity,  in  seeking  to  shut,  out 
from  this  discussion  all  shade  of  passion,  I 
desire  to  say,  before  beginning  my  argument, 
that  I  am  willing  to  submit  to  the  enforce- 
ment of  the  Conscription  Acts,  notwithstand- 
ing  I  shall    endeavor  to  demonstrate  that 


they  are  Unconstitutional.  My  purpose  is  to 
whip  this  fight,  and  I  am  willing,  rather  than 
submit  to  the  tyranny  of  Lincoln,  to  yield 
obedience  for  a  time  to  worse  than  oriental 
despotism.  I  do  not  charactt  rize  this  act  as 
such,  but  rather  than  not  be  successful  in  the 
contest  in  which  we  are  now  engaged,  I  will 
acquiesce,  for  ihe  Cause,  in  a  temporary  in- 
fraction ot  the  Constitution  itself.  Recollect, 
therefore,that  while  I  shall  endeavor  to  make 
*  it. clear  that  the  Conscription  Acts  are  in- 
fringements on  the  sovereign  rights  of  this 
State,  and  a  violation  of  the  Constitution,  I 
take  that  position  as  a  legislator  entrusted  by 
Georgia  with  great  interests  which  are  to  af- 
fect not  merely  the  present,  but  future  gene- 
rations. As  a  citizen,  I  have  drawn  the 
sword  and  flung  to  the  winds  the  scabbard, 
and  seek  to  sheathe  it  only  in  the  life-blood 
of  the  dastardly  invader.  But,  as  a  legisla- 
tor, I  stand  upon  sacred  and  holy  ground, 
and  I  feel  that  I  am  responsible,  not  only  to 
my  God,  myself,  and  my  constituents,  but 
also  to  posterity,  for  the  position  which  I 
shall  this  day  de.fend.  I  therefore  come  for- 
ward, as  a  relisdous  and  solemn  duty,  to  lay 
down  the  land-marks  that  should  guide  us 
amid  the  darkness  of  the  future. 

And  now,  Mr.  President,  first,  as  to  the 
right  of  the  Legislature  to  express  an  opin- 
ion on  a  subject  which  has  met  the  approval 
cf  Congress,aud  of  the  Courts  of  our  country. 
Ici  the  whole  history,  Mr.  President,  of  the 
United  Stases,  there  has  been  one  continual 
assertion  on  the  part  ot  the  Legislatures  of 
the  Southern  States,  a  continual  assertion 
of  the  doctrine  that  the  decisions  of  Con- 
gress and  the  opinions  of  the  Supreme 
Court  were  proper  subjects  of  criticism 
by  the  Legislatures  of  the  States.  Need 
I  point  you  to  the  history  of  Georgia  to  de- 
monstrate this  ?  When  j udicial  decisions  of 
the  Supreme  Court  have  come  in  conflict 
with  the  interests  of  Georgia,  and  the  ex- 
press law  ot  the  State,  Georgia  never  hesi- 
tated an  instant,  through  her  Executive  and 
Legislature,  to  take  a  stand  in  opposition.  In 
1880,  it  will  be  remembered  that  there  was  a 
conflict  of  this  kind,  in  reference  to  the  occu- 
pation of  our  soil  by  the  Indians.  An  Indian 
was  condemned  to  death  by  the  Courts  of 
this  State  for  a  crime  committed  on  disputed 
soil.  The  Supreme  Court  of  the  United 
States  ordered  a  suspension  of  the  execution. 
The  Chief  Executive  of  Georgia  (Gov.  Gil- 
mer,) brought  the  matter  before  the  Legisla- 
ture in  his  regular  annual  message,  in  wnich 
he  took  the  ground  UihI,  notwithstanding 
the  decision,  he  would  carry  out  the  laws  of 


Georgia,  unless  the  Legislature  should  other- 
wise direct.  The  subject  was  referred  to  a 
committee,  and  two  reports  were  submitted 
— one,  the  minority  report,  referring  the 
whole  matter  to  his  Excellency  to  do  with 
as  he  thought  proper;  the  other,  the  majori- 
ty, instructing  the  Governor  to  execute  the 
law,  it respective  of  the  mandate  of  any 
power.  The  latter  report  was  adopted  by  an 
overwhelming  vote  of  both  branches  of  the 
Legislature. 

We  all  recollect  the  action  of  that  distin- 
guished statesman  whose  portrait  hangs  be- 
fore us,  (Gov.  Troup,)  whose  memorable 
words,  in  reference  to  a  similar  conflict  be- 
tween the  State  and  Federal  authorities, 
have  become  historical:  "The  argument  is 
exhausted;  let  us  stand  by  our  arms  !" 

The  fact  is,  Mr.  President,  each  depart- 
ment of  the  Government  has  its  own  appro- 
priate sphere  of  action,  and  in  that  sphere  is 
supreme;  and  when  all  move  harmoniously 
in  their  respective  spheres,  the  system  is 
well  nigh  perfect.  If  there  were  a  single 
doubt  in  reference  to  this  subject,  I  would 
call  the  attention  of  the  Senate  to  the  Vir- 
ginia and  Kentucky  resolutions  passed  but  a 
few  years  after  the  adopting  of  the  Constitu- 
tion, in  which  the  rights  of  the  .States  re- 
spectively are  distinctly  and  clearly  set  forth. 
The  resolutions  of  Virginia  in  1793  were 
passed  in  reference  to  solemn  acts  of  the 
Federal  Congress,  the  Alien  and  Sedition 
laws,  and  I  call  the  attention  of  all  who 
doub*  our  power  in  the  premises  to  the  stern 
and  measured  language  of  the  Old  Domin- 
ion. One  of  these  resolutions  is  in  these 
words : 

Resolved,  That  (he  General  Assembly  doth 
also  express  its  deep  regret,  that  a  spirit  has 
in  sundry  instances  been  manifested  by  the 
Federal  Government  to  enlarge  its  powers 
by  forced  constructions  of  the  Constitntion- 
al  charter  which  defines  them,  and  that  indi- 
cations have  appeared  of  a  design  to  ex- 
pound certain  general  phrases  (wh<ch  having^ 
been  copied  from  the  very  limited  grant  of 
powers  in  the  former  Articles  of  Confedera- 
tion were  the  less  liable  to  be  misconstrued) 
so  as  to  destroy  the  meaning  and  the  effect  of 
theparUcular  enumeration  whieh  necessarily 
explains  and  limits  the  general  phrases,  and 
so  as  to  consolidate  the  States  by  degrees  in- 
to one  sovereignty  the  obvious  tendency  and 
inevitable  resultof  which  would  be,  to  trans- 
form the  present  republican  system  of  the 
United  States  into  au  absolute,  or  at  best,  a 
mixed  monarchy. 

Eesolwd^  That  the  General  Assembly  doth 


* 


particularly  proto&t  a?ams1  the  palpable  and 

inarming  infractions  of  the  Constitution  in  the 
two  laie  cases  of  the  "Alien  and  Sedition 
Acts,"  &c,  (Political  Text  Book,  page  G64.) 
Mark,  Senators,  how  perfect  is  the  parallel 
between  the  legislation  which  we  propose  to- 
day and  tlr.t  had  by  the  Legislature  of  Virgin 
ia.*We  p  opo-e  to  s  ly  this  day,  as  did  Virginia 
in  1793,  that  the  Congress  of  the  Confede- 
rate States  by  "expounding  certain  general 
ph  ases  so  as  to  destroy  the  meaning  of  the 
effect  of  the  panic  d  ir  enumeration"  has  put 
upon  the  States  an  unconstitutional  act.  and 
we  propose  that  this  General  Assscmbly 
shall  "particularly  protest  against  the  palpa- 
ble and  alarming  infractions  of  the  Constitu- 
tion. I  have  gone  back,  sir,  to  the  refresh 
ing  fountains  of  early  legislation  springing 
from  the  rock  of  revolutionary  experience 
to  the  days  of  Washington,  Jefferson  and 
-on. 
I  have  gone  back  to  those  fountains  of  liv- 
ing waters  to  drink  in  the  hope  that  we  m 
dig  from  the  soil  of  Georgia  perennial  Btreams 
of  living  water.  I  wished  to  show  that,  if 
this  wafer  be  bitter  to  the  taste  and  repul- 
sive to  the  palate  of  the  opponents  of  this 
resolution,  its  constituent  elements  when 
analysed,  will  be  found  the  same  as  that 
which  slaked  the  thirst  of  the  sages  ol  the 
Revolution. 

Go  back  with  me,  Mr.  President  and  Sen- 
ators, in  imagination,  to  that  venerate!  hall 
where  sat  the  illustrious  men  who  framed 
the  Constitution  of  the  United  States.  I  con- 
fess, sir,  that,  as  my  eye  glances  over  the  list 
of  names  that  composed  that  assembly,  I 
stand  appalled  and  abashed  as  in  the  pres- 
ence ot  departed  greatness  Theie  was  the 
venerable  Franklin,  who,  in  the  Courts  of 
Europe,  had  proved  that  the  power  of  the 
pen  was  second  only  to  the  sword.  There 
sat,  as  the  presiding  officer,  the  Father  ot  his 
country.  Above  his  head  hung  the  portrait 
of  arising  sun.  How  beautiful  the  remarks 
of  Dr.  Franklin,  as  the  end  of  these  weary 
weeks  was  at  hand  and  the  immortal  consti- 
tution of  '87  had  been  ratified  by  the  unani- 
mous vote  of  the  convention. 

"I  have,"  said  he,  "olten  and  often  in  the 
eourse  of  the  session  and  the  vicissitudes  of 
my  hopes  and  fears  as  to  its  issue,  looked  at 
that  picture  of  the  sun  behind  the  president, 
without  being  able  to  tell  whether  it  was  ri- 
hing  or  setting;  but  now,  at  length,  1  have 
the  happiness  to  know  that  it  is  a  rising  and 
not  a  setting  sue." 

I  have  gone  back  to  that  Convention  for 
the  purpose  ot  beginning  this  discussion,  in 


the  presence  of  the  "glorious  company  of 
the  apostles"  of  liberty.  It  I  can  pioveto 
you,  Senators,  that  the  intention  of  the  fra- 
mers  of  the  Constitution  in  providing  safe- 
guards against  encroachments  from  the  Fed- 
eral Government,  was  what  I  have  assumed, 
then  I  have  gone  far  towards  establishing 
the  correctness  of  the  principles  which  are 
set  forth  in  the  resolutions  under  discussion. 
And  here  let  me  remark  that  the  delegates 
to  the  Convention  that  framed  the  Constitu- 
tion were  from  Sovereign  States.  The  war 
had  just  euded;  and  the  Convention  was 
cilled  for  the  purpose  of  establishing  a  more 
perfect  union.  Tne  States  could  pass  any 
laws  they  might  see  fit  to  pass;  they  were 
under  no  obligations  to  any  other  power. — 
They  w«  re  sovereign  and  independent,  and 
it  was  with  them  as  sovereigns  that  Great 
Britain  had  made  the  treaty  of  peace,  and 
not  with  the  United  Statesas  a  contolidat-ou 
or  Confederacy '.  I  call  your  attention  t) 
what  the  Constitution  is,  and  was  intended 
to  be.  It  was  a  charter  of  checks  aud  bal- 
ances; a  charter  of  delegated  poweis  grant- 
ed by  the  Sovereign  Slates  to  the  General 
Government  for  the  purposes  of  general  de- 
fence. 1  defy  any  man  to  show  in  any  por- 
tion of  the  Constitution  of  the  United  States 
any  power  delegated  by  tin  m  States 

in  which  there  is  not  some  balance  of  power 
reserved  to  the  respective  States  for  the  pur- 
pose of  preventing  the  abuse  of  the  power 
delegated.  And  so  also  there  was  on  the 
other  side  bestowed  upon  the  General  Gov- 
ernment power  to  enable  the  wheels  ot  gov- 
ernment to  roll  on  smoothly  and  undisturbed. 
It  is  important  to  keep  this  principle  clearly 
in  view,  that  the  Constitution,  which  we  are 
about  to  expound,  is  a  chart  of  delegated 
powers,  ot  checks  and  balances,  and  that,  in 
every  part  of  this  instrument,  you  will  find 
a  check  over  the  delegated  powers  by  which 
despotism  may  be  avoided. 

And  now,  Mr.  President,  the  Convention 
commenced  its  sessions  on  May  14,  1737 ; 
and  on  that  day  Washington  assumed  the 
chair  as  President  by  a  unanimous  vote.— 
This  book,  now  in  my  hand— the  Madison 
Papers,  was  prepared  by  Mr.  Madison,  a 
member  of  the  Convention.  In  this  volume 
(2d)  we  have  an  account. of  the  discussions 
on  the  powers  preceding  the  war  power,  on 
the  power  of  the  Judiciary,  Congress,  and 
the  Executive.  Al  1  these  subjects  were  dis- 
cussed, amendments  proposed  and  rejected, 
and  all  the  deliberation  given  to  them  that 
their  merits  required.  The  volume  is  a  large 
one  and  the  discussions  must  have  been  fre- 


6 


quent  and  elaborate.  During  this  time  the 
war  power  never  came  before  them  but  once, 
and  that  incidentally.  And  I  cite  it  to  show 
the  extreme  sensitiveness  of  the  members 
of  this  Convention  to  anything  that  looked 
to  an  emasculation  of  the  military  powers 
of  the  States,  and  to  prove  that  a  subject, 
considered  so  vital  as  to  call  forth  such  for- 
cible language,  would  be  thoroughly  sifted 
when  the  time  for  its  consideration  should 
arrive. 

In  the  month  of  June  (7th)  when  they 
were  arguing  the  extent  to  which  they  might 
entrust  the  veto  power  of  the  President, 

"Mr,  Gerry  could  not  see  the  extent  of 
such  a  power,  and  was  against  every  power 
that  was  not  necessary.  He  observed  that 
the  proposed  negative  would  extend  to  the 
regulations  of  the  militia,  a  matter  on  which 
the  existence  of  the  State  might  depend.— 
The  National  Legislature,  with  such  a  pow- 
er, may  enslave  the  States.  Such  an  idea  as 
this  will  never  bo  acceded  to.  It  has  never 
been  suggested  or  conceived  among  the  peo- 
ple."   (ftladison  Papers,  page  823.) 

Now  I  simply  cite  this  authority  for  the 
purpose  of  impressing  on  the  minds  of  Sen- 
ators the  extreme  care,  the  nervousness  and 
sensitiveness  of  the  men  who  framed  the 
Constitution  in  regard  to  any  power  which 
could  control  direct^,  or  indirectly,  or  im- 
pair the  sovereignty  of  the  States;  and  es- 
tablish by  the  power  ot  the  sword  a  despot- 
ism in  this  country.  Now,  sir,  they  passed 
on  with  various  amendments  to  the  lesolu- 
tion  which  had  been  rejected,  introduced 
others  and  did  not  reach  the  13th  Article 
until  August.  They  began  the  session  early 
in  the  Spring  and  did  not  reach  the  Article 
that  declares  the  power  of-  Congress  to  raise 
and  support  armies  until  the  14th  ot  August. 
For  four  months  had  the  Convention  been 
engaged  before  they  reached  this  question 
of  raising  armies.  When  this  subject  was 
brought  up  an  amendment  was  added  "and 
to  support;1'  the  proposition  passed  pern.  con. 
The  subject  of  supporting  armies  was  intro- 
duced, and  it  also  passed  nem.  con.  Now, 
Senators,  as  impartial  men,  I  ask  if  these 
men  who,  when  the  veto  power  was  under 
consideration,  thought  of  restraining  it  be- 
cause it  might  be  made  to  interfere  with  the 
military  powers  of  the  States,  would  have 
been  unanimously  in  favor  of  a  proposition 
to  raise  and  support  armies  which  would 
have  effectually  interfered  with  the  military 
powers  of  the  States,  if  the  opinion  enter- 
tained by  gentlemen  of  such  power  had 
been  the  one  held  by  the  members  of  the 


Convention  ?  I  ask  you,  suppose  Mr. 
Gerry,  of  Massachusetts,  had  risen  from  his 
seat  and  stated  to  the  Convention  that  this 
power  to  raise  and  support  armies  contained 
not  only  a  power  to  raise  armies  m  times  of 
peace,  but,  also,  the  power  to  take  every  one 
of  the  arms- bearing  men  of  the  State  in  the 
service  of  the  United  States,  contrary  to  the 
will  of  the  States,  would  that  body  of  ven- 
erable men  have  listened  to  such  an  an- 
nouncement with  the  apparent  indifference 
which  marked  their  action  on  the  subject?  It 
is  not  so.  It  could  not  have  been  so.  The 
idea  would  at  once  have  sprung  into  their 
minds  that  by  this  means  despotism  of  some 
sort  might  be  established.  The  inference  is 
clear  that  they  did  not  understand  by  those 
terms  to  raise  and  support  armies  any  such 
power  as  is  claimed  for  them  by  the  advocates 
of  Conscription.  The  clause  passed  nem.  con. 
Where  was  Elbridge  Gerry  that  his  voice 
should  have  been  silent  when  Congress  was 
receiving,  as  gentlemen  say,  unlimited  pow- 
ers? Senators,  he  neverj dreamed  of  such 
a  power  being  concealed  in  this  phrase.  The 
only  remark  that  was  elicited,  and  that  after 
this  clause  had  been  adopted  was,  on  a  mo- 
tion to  reconsider  it,  for  a  verbal  alteration 
t  j  the  Grand  Committee. 

Mr.  Sherman  took  notice  that  the  States 
might  want  their  militia  for  defence  against 
invasions  and  insurrections,  and  for  enforc- 
ing obedience  to  their  laws.  They  will  not 
give  up  this  point.  In  giving  up  that  of  tax- 
ation they  retain  a  concurrent  power  of 
raising  money  for  their  own  use. 

Mr..  G  i  ry  thought  this  the  last  point  re- 
maining to  be -surrendered.  If  it  be  agreed 
to  by  the  Convention,  the  plan  will  have  as 
black  a  mark  as  was  set  upon  Cain. — (Mad- 
ison's Papers,  pp.  1,303*  1,864.) 

Thus  you  can  see  the  light  in  which  a 
proposition  to  give  up  all  the  militia  was  re- 
garded by  one  "of  the  brightest  lights  that 
adorned  the  galaxy  of  statesmen  composing 
that  Convention.  "Such  a  plan  would,  in  his' 
estimation,  have  as  black  a  mark  set  on  it 
as  that  which  was  set  on  Cam.  On  the  ques- 
tion for  submitting  the  question  to  the  Grand 
Committee  to  which  questions  that  required 
farther  discussion- was  submitted,  all  of  the 
States  voted  in  the  affirmative,  except  Con- 
nee  icut  and  New  Jersey,  and  Maryland^ 
which  was  divided. 

That  was  all  that  was  said  at  that  time  ir* 
regard  to  the  question  of  raising  and  sup- 
porting armies.  And  1  must  confess  my  as- 
tonishment that  in  the  decision  of  this  ques- 
tion by  cur  Supreme  Court,  pronounced  by 


:• 


a  maa,  whom  I  reverence  and  estee 

his  parity  as  a  man,  and  eminence's  a  ju- 
rist, it  should  have  been  said  that  the  power 
to  raise  armies  is  unabridged  by  anything  in 
the  Constitution  of  the  United  States,  and 
that  the  proposition  is  so  clear,  that  to  state 
the  proposition,  is  to  demonstrate  it.  Why, 
Senators,  that  is  the  whole  question  In  dis- 
pute. The  whole  matter  turns  upon  that 
very  point.  Would  no  voice  have  been  rais- 
ed against  a  grant  that  might  detach  from 
the  State  our  fathers,  brothers,  and  sons,  our 
young  men  and  our  old  men,  all,  it  may  be, 
from  10  to  70  years  olage,  all  the  arms-bear- 
ing men  in  the  Confederacy  ?  And  yet  not 
one  word  is  heard  against  it  from  Ellsworth, 
from  Gerry,  from  Franklin — not  one  word 
of  protest  against  the  granting  of  such  a 
power  ?  When,  on  the  5th  of  September, 
the  Committee  of  Eleven  reported,  and  to 
the  clause  to  declare  war  was  added,  "'and 
grant  letters  ot  marque  and  reprisal ;"  and 
to  the  clause  to  raise  and  support  armies  was 
added,  "but  no  appropriation  of  money  shall 
be  for  a  longer  term  than  two  years  ;"  this 
report  being  taken  up  was  adopted  nemcon. 
No  prophetic  voice  of  warning  is  lifted  up 
in  that  Hall,  notwithstanding  the  experience 
through  which  they  had  just  passed  in  the 
revolutionary  struggle.  1  repeat  the  ques- 
tion, Senators,  do  you  believe  that  any  such 
power  as  that  claimed  by  the  advocates  of 
Conscription  ever  entered  the  minds  of  these 
men  when  the  clause  in  the  Constitution  to 
raise  armies  was  up  for  discussiou  \  Would 
these  great  and  good  men,  who  had  lived 
under  the  laws  of  a  country  Which  lilack- 
stone  declares  forbids  the  raising  of  men  for 
armies  except  by  voluntary  enlistment,  and 
with  whose  writings  they  were  familiar;  and 
still  further  would  these  men  who  had  lived 
under  a  Government  whose  people  had  de- 
throned one  King,  for  exercising  such  a  pow- 
er, have  sat  still  aud  silently  seen  such  a  prin- 
ciple engrafted  on  the  Constitution  as  that 
the  general  government  might  raise  armies 
by  compulsion  ?  I  cannot "  believe  it ;  you 
cannot  believe  it.  There  was  the  refera- 
ble President  ot  the  Convention,  who  had 
not  been  long  from  the  battle-field,  and 
whose  deeds  had  illustrated  that  had  b 
tyranny  lurking  in  the  words  he  would  have 
risen  aud  rebuked  the  error. 

I  ask  you,  then,  Senators,  if  it  is  not  a  fair 
and  legitimate  deduction,  that  the  framers 
of  the  Constitution  never  intended  to  confer 
upon  the  general  government  such  a  power 
— a  power  greater  than  any  constitutional 
gover!Mr>"it  ever  tc:'or?  possessed  \ 


Weil  now,  Mr.  President  and  Senators,  I 
have  endeavored,  in  the  course  of  remarks 
which  I  have  submitted  to  you,  to  demon- 
strate this  proposion,  that  the  intention  of 
the  framers  of  the  Constitution  in  the  Con- 
vention of  1787  was  not  to  give  a  power 
which  the  Congress  of  the  Confederate 
States  have  claimed  in  this  paragraph.  Let 
us  go  still  one  step  further,  now,  and  see 
whether  we  cannot  gather  what  was  the 
real  intention  of  these  framers  of  the  Con- 
stitution, by  the  clauses  which  follow,  and 
explain  this  grant. 

Having  passed  upon  this  clause  to  raise 
and  support  armies,  the  next  clause  was  that 
in  relation  to  organizing,  arming,  and  dis- 
ciplining the  militia.  The  history  of  this 
clause  is  so  important,  and,  to  the  lover  of 
the  history  of  our  country,  so  peculiarly  in- 
teresting, that  I  beg  the  indulgence  of  the 
Seuate  while  I  read  at  length  the  report  of 
Mr.  Madison : 

"In  the  Convention  report  of  the  Commit- 
tee of  Eleven,  made  the  21st  of  August,  being 
taken  up,  and  the  following  clause  being  un- 
der consideration,  to  wit :  'To  make  laws  for 
organizing,  arming,  and  disciplining  the  mi- 
litia, and  lor  governing  such  parts  ot  them 
as  may  lie  employed  in  the  service  of  the 
United  States,  reserving  to  the  States  respec- 
tively the  appointment  of  the  officers,  and 
authority  of  training  the  militia  according  to 
the  discipline  prescribed,' 

"  Mr.  Sherman  moved  to  strike  out  the 
the  last  member— 'and  authority  of  training,' 
&c.  He  thought  it  unnecessary.  The  States 
will  have  this  authority  of  course,  if  not  giv- 
en up. 

11  Mr.  Ellsworth  doubted  the  propriety  of 
striking  out  the  sentence.  The  reason  as- 
signed applies  as  well  to  the  other  reserva- 
tion of  the  appointment  to  oflices.  He  re- 
marked at  the  same  time  that  the  term  dis- 
cipline' was  ot  vast  extent,  and  might  be  so 
expounded  as  to  include  all  other  power  on 
the  subject. 

"Mr.  King,  by  way  of  explanation, 
that  by  organizingXhs  Committee  meant  pro- 
portioning the  officers  and  men;  by  arming,, 
specifying  the  kind,  size  and  calibre  of  arms, 
and  by  disciplining,  prescribing  the  manual 
exercises,  evolutions,  &c. 

"  .Mr.  Sherman  withdrew  his  motion. 

4kMr.  Gerry —This  power  in  the  United 
States,  as  explained,  is  making  the  States 
drill-sergeants.  He  had  as  lief  let  the  citi- 
zens of  Massachusetts  be  dis  to  lake 
the  command  from  the  States,  and  subject 
them  to  the  (General  Legislature.    It  would 


be   regarded    as   a    system    of  despotism. 

"Mr.  Madison  observed  that  famishing 
explained,  did  not  extend  to  'arming1  as 
arms;  nor  the  term  'disciplining  to  penalties 
and  courts  martial  for  enforcing  them. 

"Mr.  King  added  to  his  former  explaaation 
that  arming  meant  not  only  to  provide  lor 
uniformity  of  arms,  but  included  the  authori- 
ty to  regulate  the  modes  of  furnishing,  either 
by  the  militia  themselves,  the  State  Govern- 
ments, or  the  National  Treasury;  that  laws 
for  disciplining  must  involve  penalties,  and 
everything  necessary  for  enforcing  penal- 
ties. 

"Mr.  Dayton  moved  to  postpone  the  para- 
graph, in  order  to  take  upthe  following  pro- 
position :  '  To  establish  an  uniform  and  gen- 
eral system  of  discipline  for  the  militia-  of 
these  States,  and  to  make  laws  for  organi- 
zing, arming,  disciplining,  and  governing, 
such  part  of  them  as  may  be  employed  in  the 
server  of  the  United  States  ;  reserving  to  the 
States  respectively  the  appointment  of  the 
officers,  and  all  authority  over  the  militia, 
not  herein  .given  to  the  General  Govern- 
ment.' 

J*  On  the  question  to  postpone  in  favor  of 
this  proposition,  it  passed  in  the  negative: 
New  Jersey,  Maryland,  Georgia— aye,  3; 
New  Hampshire,  Massachusetts,  Connecti- 
cut, Pennsylvania,  Delaware,  Virginia, 
North  Carolina,  South  Carolina— no,  8. 

"  On  the  question  to  agree  to  the  first  part 
of  the  clause,  namely,  *  To  make  laws  for  or- 
ganizing, arming  and  disciplining  the  militia 
and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  Unite'd 
States' — New  Hampshire,  Massachusetts, 
New  Jersey,  Pennsylvania,  Delaware,  Virgi- 
nia, North  Carolina,  South  Carolina,  Georgia 
—aye,  9 ;  Connecticut,  Maryland— no,  2. 

"Mr.  Madison  moved  to  amend  the  next 
part  of  the  clause  so  as  to  read,  'reserving  to 
the  States  respectively  the  appointment  of 
officers,  under  the  rank  of  general  officers? 

"Mr.  Sherman  considered  this  as  inadrals- 
sable.  He  said  that  if  the  people  should  be 
so  far  asleep  as  to  allow  the  most  influential 
officers  of  the  militia  to  be  appointed  by  the 
General  Government,  every  man  of  discern- 
ment would  rouse  them  bv  sounding  the 
alarm  to  them. 

"Mr.  Gerry— Let  us'  at  once  destroy  the 
State  Govern meuts,  have  an  Executive  for 
life,  or  hereditary,  and  a  proper  Senate  ;  and 
then  there  would  be  some  consistency  in  giv- 
ing full  powers  to  the  General  Goverment; 
but  as  the  States  are  not  to  be  abolished,  he 
wondered  at  the  attempts  that  were  made  to 


give  powers  inconsistent  with  their  exis- 
tence. He  warned  the  Convention  against 
pushing  the  experiment  too  tar.  Some  peo- 
ple will  support  a  plan  of  vigorous  govern- 
ment at  every  risk.  Others,  of  a  more  demo- 
cratic cast,  will  oppose  it  with  equal  deter- 
mination ;  and  a  civil  war  may  be  produced 
by  the  conflict. 

"  Mr.  Madison — As  the  greatest  danger  is 
that  of  disunion  of  the  States,  it  is'  necessary 
to  guard  against  it  by  sufficient  powers  to  the 
common  government ;  mid  as  the  greatest  dan- 
ger to  liberty  is  from  standing  armies,  it  is  best 
to  prevent  tJiern  by  an  effectual  provision  for  a 
good  militia. 

"  On  the  question  to  agree  to  Mr.  Madi- 
son's motion :  New  Hampshire,  South  Caro- 
lina, Georgia* — aye,  3  ^Massachusetts,  Con- 
necticut, New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North  Carolina — 
no,  8."— Madison  Papers,  pp.  14U2— 1408. 

Now  mark  with  wnat  jealousy  this  august 
body  viewed  any  attempt  to  overshadow  the 
States.  Mr.  Aiadison,  a  great  and  shining 
light,  admits  the  fact  that  he  desires  s=o  to 
suape  this  grant  as  that  a  disunion  of  these 
States  should  be  impossible,  and,  therefore, 
urges  that  the  States  should  be  deprived  of 
the  power  to  appoint  general  officers,  which 
was  the  check  to  balance  the  grant  of 
power. 

"Let  us  "then  destroy  the  State  Govern- 
ments," are  the  burning  words  of  the  intrep- 
id Gerry,  and  the  Convention  shows  its  ap- 
preciation of  the  whole  matter  by  the  deci- 
sive vote  with  which  they  negatived  Mr. 
Madison's  proposition. 

Now,  Senators,  my  argument  does  not 
hinge  upon  this  question  of  the  appointment 
ot  general  officers.  1  only  advert  to  it  to 
illustrate  one  of  the  propositions,  with  which. 
I.  started,  that  to  every  grant  of  power  to  the 
General  Government  is  coupled  a  check 
against  centralization.  But  I  have  thus  quo- 
ted at  large  to  deduce  from  the  jealous  scru- 
tiny with  which  they  examined  the  powers 
of  Congress  in  cases  Of  invasion,  the  con- 
clusion of  the  intentions  of  the  members  of 
the  Convention  as  to  the  former  grant. 

Now,  i  can  imagine  the  veneraule  form  of 
the  president  rising  at  this  point  of  their  de- 
liberations and  saying — "  Gentlemen  of  the 
Convention,  why  this  heat  and  fervor  in  ref- 
erence to  the  militia  ?  They  are  to  be  used 
only  in  cases  of  invasion  and  insurrection, 
and,  perhaps,  not  then;  For  you  have  al- 
ready granted  full  and  plenary  power  to  Con- 


*In  the   printed  Journal,  "Geoigia.;  nt. 


9 


gressin  the  premises,  and  this  argument  is 
but  a  waste  of  time.  Do  not,  1  pray  you, 
stultify  yourselves  by  arguing  elaborately  a 
question  already  fully  decided." 

How,  think  3  on,  such  an  address  would 
have  been  received'?  Do  you  believe  that  it 
would  have  embodied  the  sentiments  of  that 
body  ?  Nay,  1  ask  you  in  ail  candor,  do  you 
believe  that  there  was  one  man  in  that  as- 
sembly who  would  not  have  risen  in  his 
place  and  solemnly  protested  against  such  a 
construction  being  placed  upon  hi9  former 
action  ?  Mr.  President,  the  question  lies  in 
■  a  nutshell.  The  militia  clause  is  or  is  not  a 
modification  of  the  armyclausev  If  it  is,  my 
proposition  is  demonstrated.  If  it  is  not, 
these  papers  of  Mr.  Madison  lead  us  to  no 
other  conclusion  than  that  the  fathers  of  the 
Republic,  were  incapable  of  intelligent  rea- 
son. 

Mr.  President,  I  will  not  farther  elaborate 
this  point.  It  seems  to  me  that  I  have  suffi- 
ciently shown  bythe.se  Madison  papers, pre- 
pared with  great  care  by  one  oi  the  most  il- 
lustrious- members  of  that  Convention,  the 
intention  of  that  body  in  the  grant  of  milita- 
ry power  to  the  General  Government.  Rec- 
ollect that  there  were  lawyers  in  that  body, 
who  knew  the  value  of  words  and  who 
weighed  the  measure  of  language  by  the 
standard  of  history.  When  they  used  the 
term  "raised  armies,''  they  presupposed  a 
knowledge  of  English  law'and  applied  it  to 
the  words.  When  they  came  to  militia  they 
knew  the  full  extent  ot  their  power  under 
English  precedents,  and  prepared  to  guard 
it  jealously. 

1  think  I  have  demonstrated  that  these 
Gamaliels  ot  the  revolution,  at  whose  feet 
we  have  been  content  to  sit  and  drink  of 
their  words  of  wisdom;  the  men,  who  had 
been  baptized  in  the  blood  of  the  immortal 
struggle  tor  liberty,  and  who  had  emerged 
sanctified  by  their  undying  efforts  for  right; 
these  men  must  have  been  devoid  of  reason 
if  they  construed  the  power  to  raise  armies 
to  include  a  military  power  over  every  citi- 
zen of  the  respective  States,  and  yet,  two 
months  afterwards,  should  consume  days  in 
the  discussion  of  a  military  power  in  a  few 
specified  cases.  Ii  seemed  to  bo  an  axiom 
with  them  that  standing  armies  were  dan- 
gerous in  time  of  peace ;  and  yet  in  the  mi- 
litia clause  they  provide  for  every  occasion, 
in  which  there  could  be  a  defensive  war. — 
To  ma.ntain  the  construction  of  the  advo- 
cates of  conscription,  and  yet  accord  good 
sense  to  the  members  of  the  Convention,  the 
power  to  raise  p.rnvies  could  only  be  exer- 


cised in  times  of  peace  or  in  a  foreign  war. 
The  fact  is,  these  powers  were  necessarily 
to  be  construed  together,  or  the  members  of 
that.  Convention  have  stultified  themselves. 
Well,  Mr.  President,  there  is  still  another 
method  by  which  lawyers  are  enabled  to 
arrive  at  the  proper  construction  of  an  in- 
strument which  they  are  investigating.  I 
have  endeavored  to  reach  this  end  by  the 
intention  of  the  lramers  of  the  instrument: 
I  snail  now  proceed  to  examine  the  consti- 
tution by  the  light  of  cotemporaneous  histo- 
ry. It  is  well  known  that  in  ecclesiastical 
matters,  it  is  the  custom  of  divines  to  seek, 
in  the  writings  of  the  fathers,  who  lived  near 
the  times  ot  the  apostles,  the  light  which 
they  are  often  unable  to  gather  from  the  sa- 
cred witings,  themselves,  and  no  safer  guide 
can  be  lound,  in  the  determination  of  doubt- 
ful dogmas,  than  the  action  and  commenta- 
ries of  the  fathers  of  the  church. 

I  now  propose  to  demonstrate  by  thet 
writings  of  Washington,  Jefferson,  aud  the. 
action  of  Congress  uniformly,  that  the  con- 
struction thatl  placed  upon  "the  Constitution 
is  the  correct  one. 

The  distinguished  jurist,  who  has  decidetl 
the  Conscript  Acts  to  be  constitutional,  has 
declared  that  George  Washington  had  rec- 
ommended to  Congress,  through  his  Secre- 
tary of  War,  a  plan  for  raising  armies  iden- 
tical with  conscription,  and  argues  that  we 
walk  in  the  safe  paths  when  we. tread  in  the 
footsteps  of  the  Father  of  our  country.  I 
confess  that  this  position  is  a  fascinating  one, 
and  that,  if  it  can  be  demonstrated  that  this 
power  to  conscribc  has  been  endorsed  by 
Washington,  it  is  a  strong  argument  on 
their  side.  But  1  deny,  in  unequivocal  terms, 
that  the  plan  of  Mr.  Knox  embraced  the 
obnoxious  features  of  conscription,  and  I 
challenge  an  investigation  ot  the  fact. 

The  plan  of  Mr.  Knox  was  a  recommen- 
dation ofja  legionary  organization,  by  which 
the  arms-bearing  people  of  the  States  might 
be  divided  into  three  classes  of  ages  speci- 
fied, by  which  education  might  be  advanc- 
ing with  the  first  class,  while  the  second  was 
on  the  field  of  action,  and  the  third  held  as 
a  reserve.  The  act  lies  before  me,  (Ameri- 
can State  papers,  vol.  12,)  and  its  whole  op- 
eration was  through  the  instrumentality  of 
the  States, 

But  granting,  for  the  sake  of  argument, 
that  this  was  a  conscript  act,  there  are  three 
distinct  facts  in  connection  with  it,  which 
entirely  destroy  the  force  of  the  position  as- 
sumed. 
1st,   George   Washington    never  Tecom- 


10 


mended  it  to  pass.  He  sedulously  avoids 
any  expression  of  opinion,  contenting  him- 
self vrith  .simply  transmitting  the  views  of 
his  Secretary  to  Congress. 

2d,  Gen.  Washington  never  conceived 
Oiat  this  plan  of  Mr.  Knox  was  to  be  based 
upon  that  clause  of  the  Constitution,  which 
provides  for  raising  armies,  but  expressly 
declares  that  it  is  "a  plan  for  the  general  ar- 
rangement of  the  militia"  thus  plainly 
showing  that  if  it  was  a  Conscript  Act,  it 
must  be  justified  under  the  power  in  Con- 
gress to  organize  the  militia. 
"Organization  militia  communicated  to  the 

Senate  on  the  21st  of  January,  1790 : 

Gentlemen  of  the  House  of  Representa- 
tives :  The  Secretary  for  the  Department-  of 
War  has  submitted  to  me  certain  principles 
to  serve  as  a  plan  for  the  general  arrange- 
ment of  the  militia  ot  the  United  States. 

Conceiving  the  subject  to  be  ot  the  high- 
est importance  to  the  welfare  of  our  coun- 
try, and  liable  to  be  placed  in  various  points 
of  view,  I  have  directed  him  to  lay  the  plan 
before  Congress  for  their  information,  in  or- 
der that  they  may  make  such  use  thereof  as 
they  may  judee  proper. 

[Signed,!  GEO.  WASHINGTON. 

United  States,  January  21  1790." 
(American  State  Papers,  vol.  12 :  p.  6,) 

But  there  is  a  third  fact,  more  striking 
than  either  of  the  foregoing  in  this  connec- 
tion, and  that  is  that  Congress  rejected  the 
plan,  and  therefore,|Were,  though  it  had  been 
demonstrated  that  George  Washington  ap- 
proved the  plan,  and  that  it  was  in  conso- 
nance with  the  power  to  raise  armies,  both 
of  which  we  have  refuted,  the  first  Congress 
of  the  United  States  of  America  set  its  seal 
of  condemnation  upon  what  gentlemen  on 
the  other  side  are  pleased  to  terra  the  first 
Conscription  Act. 

Now,  there  is  no  record  of  the  reasons 
which  animated  them  in  the  rejection  of 
Mr.  Knox's  plan.  We  co  not  know  what 
arguments  may  have  brought  them  to  that 
conclusion.  But,  in  a  body  composed  of 
men  so  distinguished,  it  is  reasonable  to  sup 
pose-  that  a  plan  which  had  worked  so  fa- 
vorably under  the  auspices  of  Napoleon,  and 
was  recommended  by  so  able  a  Secretary, 
would  not  have  been  rejected  but  for  grave 
and,  may  I .  not  say,  constitutional  objec- 
tions. 

But,  sir,  this  is  not  all.  This  plan  was 
recommended  to  Congress  for  the  arrange- 
ment of  the  militia.  If  they  rejected  it, 
what  plan  did  they  adopt  ? 

Turn,  sir,  to  the  M^iitary  Laws  of  the 


United  Statps,  aud  there  vou  (lad  the  Act  of 
1792,  the  first.  Militia  Law.    ( Page  295.) 

Let  us  road  the  first  five  lines: 

"That  each  and  ever]/  free  whits  able-bodied 
citizen  of  the  respective  'States,  resident  there- 
in, who  is  or  shall  be  of  the  age  of  18  and 
under  45,  shall  severally  .  and"  respectively 
be  enrolled  in  the  militia." 

Now,  pause  for  a  moment  at  this  point.— 
Every  citizen  between  18  and  45  is  enrolled 
in  the  militia.  Suppose,  at  this  juncture, 
Congress  had  wanted  to  raise  an  army. — 
How  would  it  have  been  done?  Where 
are  the  men  to  come  from  ?  Not  from  the 
able  bodied  citizens  between  18  and  45,  for 
they  are  formally  enrolled  in  the  militia 
Sir,  I  ask  you,  in  all  candor,  had  an  insur- 
rection broken  out,  or  an  invasion  been 
made,  would  Congress  have  dared  to  enter 
by  force  the  ranks  of  the  militia,  to  form  an 
army. 

But,  sir,  to  return.  In  the  course  of  an  ar- 
gument some  days  since  with  the  honorable 
Senator  from  Richmond.  I  stated  that  there 
was  a  view  of  this  subject,  which  I  had  not 
seen  taken,  which  cleared  from  my  mind  all 
difficulties  concerning  the  harmonious  work- 
ings of  the  State  and  General  Governments. 

If  you  will  examine  the  act  of  1792,  and 
179jTtMilitary  Laws  p.  295  to  303,)  you  will 
perceive  an  arrangement  of  the  militia  as 
complete  as  that  of  Mr.  Knox  and  having 
the  additional  merit  of  being  constitutional. 
By  these  acts,  a  uniform  militia  establish- 
ment is  created  in  each  State  under  the  di- 
rection aud  control  of  the  President  of  the 
United  States,  Annual  reports  were  to  be 
made  by  the  Adjutant  General's  of  the  sev- 
eral States  to  the  President,  who  was  requir- 
ed to  lay  them  before  Congress  each  and  ev- 
ery year,  Over  this  militia,  the  President 
had,  on  the  occasions  specified  by  the  Consti- 
tution, fall  and  complete  control,  and  that, 
too,  without  the  necessity  of  calling  upon 
the  Governors  of  States  for  them.  The  act 
of  1795  makes  it  "lawful  for  the  President 
to  call  forth  such  number  of  the  militia  as 
he  may  judge  necessary  to.  repel  invasion 
and  to  issue  his  orders  for  that  purpose  to  such 
officer  or  officers  of  the  militia  ai  he  shall  think 
proper." 

Now,  my  idea  is  that,  had  this  system  been 
adopted,  under  a  Clear  grant  of  power,  much 
more  could  have  been  accomplished  than 
has  been  done  under  the  Conscript  acts,  and 
the  rights  of  the  States  been  pres2rved. 

But,  sir,  my  main  argument  is  that  the 
Aots  of  1792  and  1795  were  a  rejection  and 


I  ! 


eondernnati  uilted  by  Mr. 

Knox. 

But  this  is  not  the  only  condemnation  of 
it,  and  as  we  proceed  in  the  history  of  Con- 
•nal  legislation,  you  will  perceive  that 
my  assumption,  that  that  plan  was  rejected 
on  constitutional  grounds  is  not  a  mere  in- 
erence  but  is  plainly  announced  bv  Congress 
itself: 

(Communicated  to  the  House  of  Represen- 
tatives, March  24,  1794.) 

Mr.  Cobb  from  the  Committee  appointed 
to  report  whether  any  and  what  alterations 
are,  in  their  opinion,  necessary  to  the  act, 
more  effectual}-  to  provide  for  the  national 
defence,  by  establishing  an  uniform  militia 
throughout  the  United  States,  made  the  fol- 
lowing report: 

That  they  are  impressed  with  the  impor- 
tance of  a  more  energetic  system  for  the  es- 
tablishment of  an  uniform  militia  than  what 
is  contemplated  by  the  present  existing  laws 
of  the  U.  S. ;  but  in  -viewing  this  subject  as 
applied  to  the  Constitution  of  the  United  State* 
and  the  powers  therein  expressly  reserved  to  the 
different  States,  they  have  their  doubts  how 
tar  Congress  can,  consistent  therewith,  make- 
any  important  alterations  or  amendments  in 
the  present  law;  and  as  the  right  of  train- 
ing the  militia  is  constitutionally  reserved  to 
the  States,  it  they  can  be  impressed  with  the 
importance  of  exercising  this  power,  and  di- 
recting its  operation  more  especially  to  the 
light  infantry  and  grenadier  conipani 
each  regiment,  an  efficient  force  may  be 
thereby  created,  and  equal  to  any  that  can 
probably  be  obtained  by  any  additional  law 
of  the  United  States  made  under  the  consti- 
tutional powers  of  Congress.  Under  this 
view  of  the  subject,  and  until  further  expe- 
rience shall  be  had  under  the  existing  law, 
the  committee  are  of  opinion  that  no  amend- 
ment is  necessary  to  an  act  for  establishing 
an  uniform  militia  throughout  the  United 
States.  (American  State  Papers,  \o\  12,  p. 
66.) 

Now,  murk  the  language.  In  vie  win-  this 
subject,  as  applied  to  the  Constitution,  they 
have  their  doubts  how  far  Congress  [can  al- 
ter the  present  law.  What  law  ?  The  act  oi 
1792,  which,  as  we  have  seen,  was  passed 
by  the  Congress  that  rejected  Mr.  Knox's 
plan.  Does  this  not  prove  that  the  Coi 
of  1794  believed  that  they  had  exhausted 
their  power  in  Hie  legislation  of  the  prece- 
ding Congress  V 

But,  again,  in  1803,  Mr.  Yarn  am,  from  the 
committee  to  whom  was  referred  that  part 
of  the  President's  message  of  the  15Ui  day 


of  December  last,  which  i 
iitia  institution  of  the  United  States,and  a  bill 
which  was  reported  to  the  House  at   the 
last  session  ot  Congress,  on  the  same  sub- 
ject, made  the  following  report : 

"That  after  a  lull  investigation  of  the  sub- 
ject they  are  of  the  opinion  that  a  law  which 
passed  the  8th  day  of  May,  1 792,  entitled 
"An  act  more  effectually  to  provide  for  the 
national  defence,  by  establishing  an  uniform 
militia  throughout  the  U.  S.,M  embracing  all 
the  objects  of  a  militia  institution,  delegated 
to  Congress. 

Resolved,  That  the  President  of  the  United 
Slates  be  requested  to  write  to  the  Executive 
of  each  State  urging  the  importance  and  in- 
dispensable necessity  of  vigorous  exertions, 
on  the  part  of  the  State  governments,  to 
carry  into  effect  the  militia  system  adopted 
by  the  National  Legislature,"  agreeably  to 
the  powers  reserved  to  the  States  respec- 
tively, by  the  Constitution  of  the  United 
States,  and  in  a  manner  the  best  calculated 
to  insure  such  a  degree  of  military  discipline 
and  knowledge  of  tactics  as  will,  under  the 
auspices  of  a  benign  Providence,  render 
the  militia  a  sure  and  permanent'  bulwark 
ot  national  defence."'  (American  State  Pa- 
pers, vol.  12,  p.  163.) 

Here,  again,  Congress  lias  before  it  tho 
act  of  1 792  ,aud,  after  mature  consideration, 
declare  that  that  act  embraceth  all  the  ob- 
jects of  a  militia  institution  delegated  to 
Congress.  Can  language  be  more  i 
,-ivc  V 

But,  still  further,  in  1806,  the  Committee 
of  Congress  examine  at  length  the  classifi- 
cation proposition  of  Mr,  Knox,  and  the  re- 
sult is  another  verdict  against  it : 

"Mr.   Varnum,   from  the  Committee    to 
whom  wa3  referred  so  much  of  the  m 
of  the  President  of  the  Un'  ,  ol  the 

3rd  of  December,  as  relates  to  the  organiza- 
tion and  classification  of  the  militia,  and  to 
the  augmentation  ot  the  land  forces,  made 
the  following  report,  in  part,  in  relation  to 
the  classification  and  new  organization  of 
the  militia. 

"If  the  proposed  system  should  be  adop- 
ted, the  total  derangement  of  the  existing 
organization  of  the  militia  must  be  the  con- 
sequence. It  may  be  proper  here,  again  to 
remark  that,  by  the  Constitution  of  the  Uni; 
ted  States  is  vested  in  the  General  Govern- 
ment the  power  'to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  em- 
ployed in  the  service  of  the  United  States,' 
the  Constitution   is 


12 


express  in  'reserving  to  the  States,  respec- 
tively, the  appointment  of  the  officers,  and 
the  authority  ot  training  the  militia  accord- 
ing to  the  discipline  prescribed  by  Congress.' 
By  this  derangement  in  the  Constitution, 
the  powers  necessary  to  prodnee  an  efficient 
militia  are  divided  between  the  General 
Government  and  the  State  Governments  — 
In  pursuance  of  the  po^er  vested  in  the 
General  Gevernment  on  this  subject,  Con- 
gress did  in  the  year  1792,  pass  an  act  to  es- 
tablish a  uniform  militia  throughout  the 
United  States,  which  act  seems  to  embrace 
all  the  principles  in  the  case  delegated  to 
Congress.  Soon  after  the  passage  of  that 
law  by  Congress,  a  consideration  of  the  sub- 
ject w'as  assumed  by  the  Legislatures  of  all 
the  States,  and  laws  have  been  passed  by 
all  the  States  for  carrying  that  system  into 
effect,  so  that  by  the  co-operation  of  the 
General  Government  and  the  State  Govern- 
ments, the  militia  are  now  completely  or- 
ganized and  officered  throughout  the  Union. 
It  is  now  thirteen  years  since  this  system 
has  been  in  operation  ;  the  people  practicing 
under  it  have,  in  a  great  degree,  become  ac- 
quainted with  it  and  attached  to  it ;  and,  in 
many  parts  of  the  Union,  military  discip- 
line is  rapidly  progressing  under  it,  and  it 
cann  >t  with  propriety  be  doubted  that  the 
militia  of  the  United  States,  'under  the  ex- 
isting organization,  are  amply  competent  to 
a  detence  against  the  intrusion  of  any  inva- 
ding enemy.  To  derange  this  system,  then, 
and  introduce  one  totally  new  and  untried, 
one  in  whtch  it  is  not  certain  that  the  State 
Legislatures  wiU  concur,  and  which  is  of 
doubtful  aspect  as  it  relates  to  the  approba- 
tion of  the  body  of  the  people,  would,  in 
the  opinion  of  the  Committee,  at  this  im- 
portant crisis  of  onr  national  affairs,  be  put- 
ting too  much  to  risk."  (American  State'Pa- 
pers,  vol.  12,  p.  189.) 

Now,  by  the  way,  I  would  remark  that 
this  report  discloses  the  fact  that  our  fathers 
believed  that  the  State  legislatures  had  some 
little  power  in  the  premises,  and  were  to  be 
occasionally  consulted.  These  notions  are, 
perhaps,  too  antiquated  for  the  enlighten- 
ment of  1862,  but  the  Congress  of  1806  did 
not  deem  it  beneath  their  dignity  to  advert  to 
the  fact,  that  the  State  Legislatures  had  con- 
CHrrent  power  with  them  over  the  militia. 

I  would  now  ask-  any  impartial  hearer 
whether  it  has  not  been  demonstrated  that 
the  plan  of  Mr.  Knox,  misquoted  as  it  has 
often  been,  received  for  the  twenty  years  of 
legislation,  immediately  subsequent  to  the 
adoption  of  the  Constitution,  the  condemna- 


tion of  the  men  who  lived  cotemporaneously 
with  its  birth. 

But,  Mr.  President,  we  have  still  addition- 
al light  upon  this  subject,  which  enables  me 
not  only  to  prove  what  Congress  cannot  do 
under  the  power  to  raise  armies,  but  what 
they  can  do.  It  Senators  have  followed  my 
line  of  argument,  they  very  clearly  deduce 
the  idea,  which  I  am  now  reaching,  that  all 
power  in  Congress  to  raise  an  army  by  com- 
pulsory process  is  through  the  militia  clause, 
and  thai  the  power  to  ''raise  armies1'  applies 
to  a  regular  army,  to  be  raised  by  voluntary 
enlistment.  The  method  I  have  not  yet 
shown  specifically.  But  Congress  comes  to 
my  aid  in  this  emergency  and  shows  how 
the  regular  army  is  to  be  recruited. 

"An  act  supplementary  to  the  act,  entitled 
"An  Act  for  the  more  perfect  organization, 
of  the  army  of  the  United  States:" 

"Sec.  6.  And  be  it  further  enacted,  That  it 
shall  be  lawful  for  any  person,  during  the 
term  he  may  be  perf  >rming  a  tour  of  militia 
duty,  to  enlist,  in  the  regular  army  of  the 
United  States;  and  the  recruiting  officers 
are  hereby  authorized  to  enlist  any  such  per- 
son in  the  same  manner,  and  under  the  same  . 
regulations,  as  if  he  were  not  performing 
such  militia  duty ;  and  every  person  who 
shall  enlist,  while  performing  a  tour  of  mili- 
tia duty  as  aforesaid,  shall  be  thereby  exhon- 
erated  from  serving  the  remainder  of  said 
tour;  rnd  the  State"  to  which  he  may  belong 
shall  not  be  required  to  furnish  any  other 
person  to  serve  in  his  stead."  (Military  Laws 
of  U.  S.,  p.  159  ) 

Mr.  President,  this  extract  solves,  to  my 
mind,  all  difficulties  about  this  problem.— 
To  repel  invasion,  suppress  insurrection, 
the  Confederate  States  can  come  to  this 
State,  and,  through  the  machinery  of  the 
militia,  officered  by  herself,  compel  every 
man  to  do  military  service.  But,  sir,  be- 
yond this  the  General  Government  cannot 
go.  They  cannot  enter  this  Sovereign  State 
and  force  a  freeman  of  Georgia  to  enter 
their  regular  army.  If  he  chooses  to  vol- 
unteer, well  and  good.  He  may  be  relieved 
from  his  militia  duty,  and  the  State  shall 
have  credit  for  that  man,  as  a  militia  man, 
in  any  future  draft  upon  her  for  troops. — 
But  to  force  him  to  go  is  a  power  which  the 
Constitution  does  not  give,  and  against 
which,  as  a  Senator,  I  solemnly  protest.— 
There  were,  at  one  time,  five  armies  in  the 
United  States,  under  the  p«wer  to  raise 
armies,  but  no  man  dared  claim  that  the 
ranks  of  either  of  them  could  be  filled  by 
compulsion.     Mr.   Jefferson  calls  them  the 


13 


regular  army,  the  additional  army,  tlie  pro- 
visional army,  the  army  of*  volunteers,  and 
the  eventual  army.  Tney  existed  at  the  same 
time  for  protecting  our  exposed  borders  aud 
filling  up  the  peace  military  establishment 
of  the  United  States.  But  no  Pre*;deut 
dreamed  of  forcing  a  citiz  n  of  the  States, 
against  his  will,  into  the  ranks. 

Mr.  President,  I  will  not  weary  you  by 
further  quotations.  I  have  before  me  the 
writings  of  Washington  and  of  Jefferson,  of 
Webster  and  of  Woodoury,  leading  minds 
of  the  first  and  last  days  of  the  American 
Republic.  Their  3eniiments  upon  ihisgreat 
question  are  almost  identical  With  all,  it 
seemed  clear  that  the  military  power  of  the 
United  States  by  compulsion  was  restricted 
to  the  militia,  and  that  the  regular  army  of 
the  country  could  be  raised  only  by  volun- 
tary engagement.  But  my  time  is  growing 
short,  and  as  I  perceive  that  my  remarks 
are  being  reported  by  the  press,  and  as  tho 
flattering  attention  you  have  given  me  evin- 
ces your  appreciation  of  the  importance  of 
the  subject,  I  will  record  the  reference  to  the 
authorities  I  had  prepared. 

WASHINGTON. 

Sparks  Writings,  vol.  vii,  pp.  51,  441,442, 
£05;  vol.  viii,  p.  143 ;  vol.  xii.  pp.  48,  51,01, 
74,60. 

JEFFERSON. 

Jefferson's  Complete  Works,  vol.  iv,  p. 
4G9,  279,  282,  291;  voL  v,  pp.  76\  159,  423; 
voL  viii,  pp.  49, 108. 

WEBSTER. 

Life  of  Webster,  vol.  ii,  pp.  48,  95,  G13. 

WOODBURY. 

Woodbury's  Wr  tings,  vol.  1,  pp.  102,  472. 

I  particularly  invite  attention  to  the  clear 
distinction  drawn  by  Mr.  Jeff.rson  in  his 
message  ot  December  3,  1805.  between  the 
regular  army  and  the  militia. 

And  now,  Mr.  President,  transport  your- 
self  back  to  another  scene  of  more  recent 
date!  We  have  traveled  through  the  distant 
paths  of  varied  years,  and  delved  into  the 
musty  records  of  Congressional  action,  to 
discover  the  thoughts  and  opinions  of  those 
wbo-:e  names  are  history.  Go  with  me  to  Sa- 
vannah. ~nd  enter  the  Convention  of  Georgia 
which  r.  tified,  in  18(31,  the  Confederate  Con- 
stitution I  see  before  me  the  Senators  from 
Hancock,  (Mr.  Harris,)  from  Troup,  (Mr. 
Beasley,)  from  Whitfield,  (Mr.  Jackson,)  and 
I  ask  them  in  all  sincerity  to  say  whether, 
when  Mr.  Alexander  reported  the  resolution 
that  Georgia  ratify  the  Constitution,  in  her 
sovereign  capacity,  it  ever  entered  their  ima- 
ginations that  they  were  conferring  upon 


the  Congress  of  the  Confederate  States  such 
a  power  as  is  claimed  under  the  Conscrip- 
tion Acts  ?  Nay,  had  one  arose  and  prophe- 
sied to  them  that,  in  a  year  after  their  ad- 
journment, Congress  could  have  exercised 
that  power  under  the  grant  to  raise  armies, 
would  not  the  vote  upon  its  a  loption  have 
been  as  unanimously  in  the  negative,  as  by 
lit  of  history,  it  had  the  right  to  be, 
and  was,  affirmative?  I  see  that  my  friends 
reply  approvingly  to  my  inquiries,  and  I 
gather  again  the  intention  of  the  trainers  of 
the  Confederate  Constitution. 

And  now,  Mr.  President,  Cui  bono?— 
VJThat  is  the  object  of  the  remarks,  which  I 
have  had  the  honor  to  make  this  day?  Do 
I  intend  to  ask  you  to  oppose  the  operations 
of  the  Conscript  Acts,  while  clouds  and 
darkness  are  round  about  u>1  Do  Iseek  to 
induce  Georgia  to  assert  her  owu  separate 
sovereignty  by  reason  of  this  infringement 
of  it?  Go  J  forbid.  That  is  not  my  object. 
As  a  citizen  lam  willing  to  submit  to  much 
more  than  this  to  bring  this  war  to  a  success- 
ful close.  Such  is  my  action,  such  my  ad- 
vice. But  as  a  Senator  1  stand  upon  sacred 
ground,  and  I  feel  it  my  duty  to  erect  on 
yonder  journal  a  record  that  shall  be  a  land- 
mark to  posterity. 

But  to  do  this,  I  need  rot  indulge  in  in- 
vective against  any  one.  Sir,  in  my  heart  I 
believe  that,  if  we  could  probe  the  secret 
thoughts  of  that  illustrious  man,  who  now 
presides  over  the  destinies  of  th"<s  Confede- 
racy, we  should  perceive  the  sadness,  with 
which  he  forced  himself  to  sacrifice  on  the 
altar  of  his  country  the  principles  of  a  life- 
time. 

He  knew  better  than  I,  better  than  anv  of 
us  here,  the  laws,  on  which  I  have  com- 
mented, for  in  his  message  recommending 
conscription,  which  I  believe  he  meant  to  be 
State  conscription,  be  suggested  the  repeal 
o.  all  militia  laws.  But  when  Congress  had 
passed  the  laws,  he  knew  not  how  fitter  to 
fight  this  great  battle,  and  he  yielded,  I  be- 
lieve, his  conviction  of  law  to  the  necessities  ' 
of  desperate  times.  That  he  will  use  the 
power  to  our  injury,  I  spurn  the  thought- 
He  is  a  pure  patriot,  and  my  argument 're- 
quires no  aspersion  of  him. 

Mr.  President,  all  of  us  must  make  sacri- 
fices in  this  war.  Our  women  are  bleeding 
over  desolated  homes  and  broken  hearts.— 
Our  children  are  suffering  for  a  father's  guid- 
i  ig  hmd.  Our  property  is  being  rimed  «nd 
our  proHpects  in  lite  shaitered— and  shall  I 
not,  as  a  citizen,  yield  to  my  country  the 


14 


obedience  and  aid,  which  as  a  Senator  I  can- 
not do  ?    I  will. 

Sir,  it  may  be  that  ere  the  lime  shall  ar- 
rive for  our  adjourned  session,  my  bones 
may  be  bleaching  beneath  the  battlements  I 
have  buildcd.  It  may  be  that  the  gallant 
band,  who  now  cluster  around  me,  may  be 
sleeping  amid  the  shells  of  the  ocean  they 
are  guarding.  But  peace  will  some  day  come. 
And  then  !  Georgia  !  Georgia  !  thy  moun- 
tains shall  belch  forth  the  liquid  ore  that 
shall  dot  thy  surface  with  the  materials  of 
prosperity.  Thy  fields  shall  be  white  with 
the  kingly  plant,  that,  with  African  muscle 
and  Caucasian    skill,  shall    enable  thee  to 


rule  the  world.  Prosperity  and  plenty 
shal?  be  in  thy  borders  and  our  God 
shall  give  us  His  blessing.  I  may  not 
live  to  see  these  blessed  days ;  but, 
sir,  my  ambition  is  that  when  in  the  fu- 
ture our  children  shall  recount  the  deeds  of 
this  revolution,  they  may  probably  say 
that  their  fathers  not  only  achieved  the 
blessings  of  a  free  government  for  them  by 
the  power  of  the  sword,  but  that,  despite 
the  darkness  that  hung  over  them,  they 
handed  down  to  them  a  country  redeemed, 
regenerated,  disenthralled  by  the  irresistible 
genius  of  the  eternal  principles  of  constitu- 
tional liberty. 


/ 


I 


Hollinger  Corp, 
pH  8.5 


